EEOC Files Suit Against Dollar General and BMW for Use of Criminal Background Checks to Disproportionately Affect African Americans

Monday, June 17, 2013

A BMW manufacturing facility in South Carolina, and the largest small-box discount retailer in the United States violated Title VII of the Civil Rights Act by implementing and utilizing a criminal background policy that resulted in employees being fired and others being screened out for employment, the U.S. Equal Employment Opportunity Commission alleged in two lawsuits.

The EEOC's Charlotte district office filed suit in U.S. District Court of South Carolina, Spartanburg Division against BMW Manufacturing Co., LLC, and a separate suit was filed in Chicago against Dolgencorp, doing business as Dollar General.

In the suit against BMW, the EEOC alleges that BMW disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity. The claimants were employees of UTi Integrated Logistics, Inc. ("UTi"), which provided logistic services to BMW at the South Carolina facility. The logistics services included warehouse and distribution assistance, transportation services and manufacturing support.

Since 1994, BMW has had a criminal conviction policy that denies facility access to BMW employees and employees of contractors with certain criminal convictions. However, when UTi assigned the claimants to work at the BMW facility, UTi screened the employees according to UTi's criminal conviction policy. UTi's criminal background check limited review to convictions within the prior seven years. BMW's policy has no time limit with regard to convictions. The policy is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants' respective positions.

In 2008, UTi ended its contract with BMW. During a transitional period, UTi employees were informed of the need to re-apply with the new contractor to retain their positions in the BMW warehouse. As part of the application process, BMW directed the new contractor to perform new criminal background checks on every current UTi employee applying for transition of employment. The new contractor subsequently discovered that several UTi employees had criminal convictions in violation of BMW's criminal conviction policy. As a result, those employees were told that they no longer met the criteria for working at the BMW facility and were subsequently terminated and denied rehire as employees of the new contractor, despite the fact that many of the employees had worked at the BMW facility for years.

In Illinois, the Chicago office of the EEOC filed a nationwide lawsuit based on discrimination charges filed by two rejected black applicants. That lawsuit charges that Dollar General conditions all of its job offers on criminal background checks, which results in a disparate impact against blacks. Dollar General operates 10,000 stores in 40 states, plus 11 distribution centers. Ninety percent of all Dollar General employees are store clerks who are both stockers and cashiers at the stores.

According to the EEOC, one of the applicants who had filed a charge with EEOC was given a conditional employment offer, although she had disclosed a six-year-old conviction for possession of a controlled substance. Her application also showed that she had previously worked for another discount retailer as a cashier-stocker for four years. Nevertheless, her job offer was allegedly revoked because Dollar General's practice was to use her type of conviction as a disqualification factor for 10 years.

The other applicant who filed an EEOC charge was fired by Dollar General although, according to the EEOC, the conviction records check report about her was wrong - she did not have the felony conviction attributed to her. The EEOC said that although she advised the Dollar General store manager of the mistake in the report, the company did not reverse its decision and her firing stood.

"Title VII of the Civil Rights Act of 1964 prohibits discrimination against job applicants and employees on account of their race," said EEOC Chair Jacqueline A. Berrien. "Since issuing its first written policy guidance in the 1980s regarding the use of arrest and conviction records in employment decisions, the EEOC has advised employers that under certain circumstances, their use of that information to deny employment opportunities could be at odds with Title VII."

Both lawsuits were brought under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race and national origin as well as retaliation. The EEOC will assert claims of disparate impact, in both cases, against African Americans. The EEOC filed suit in each instance after attempting to resolve the matter through settlement. In all, the Commission will seek back pay, as well as injunctive relief to prevent future discrimination of employees and applicants.

Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the Commission's Strategic Enforcement Plan (SEP).

On April 25, 2012, the EEOC issued updated enforcement guidance on employer use of arrest and conviction records. The EEOC is a member of the federal interagency Reentry Council, a Cabinet-level interagency group convened to examine all aspects of reentry of individuals with criminal records. Among other issues, the Reentry Council is working to reduce barriers to employment, so that people with past criminal involvement - after they have been held accountable and paid their dues - can compete for appropriate work opportunities in order to support themselves and their families, pay their taxes, and contribute to the economy.